Date: 19990611
Docket: IMM-3460-98
BETWEEN:
JOSE EDUARDO PEREIRA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
GIBSON J.:
[1] These reasons arise out of a decision of the Immigration Appeal Division (the "IAD") of the Immigration and Refugee Board wherein the IAD determined that the applicant, being a permanent resident of Canada against whom a removal order had been made, and having regard to all of the circumstances of his case, was not a person who should not be removed from Canada. The decision of the IAD is dated the 19th of June, 1998.
[2] These are not the first reasons delivered by this Court on an application for judicial review brought by this applicant. The following description of the background facts is largely derived from a decision of Mr. Justice Cullen in J.E.P. v. Canada (Minister of Citizenship and Immigration)1.
[3] The applicant was born in Portugal on the 21st of September, 1962. He came to Canada at the age of eleven as a landed immigrant on the 7th of July, 1974. He accompanied his mother, two sisters and two brothers. His late father had come to Canada previously, sometime in the 1950s, and had travelled back and forth to Portugal until the family was able to join him in 1974. The applicant"s two sisters and one of his brothers are Canadian citizens. The applicant never applied for Canadian citizenship.
[4] The applicant left school while in the 10th grade and commenced work at Cotain Plastic Products Ltd. as a packer in 1978. He then worked for the same company as a machine operator on the assembly of products, was promoted to foreman, and then further promoted to shift supervisor. He remains employed by the same employer. He is described by the Plant Manager as a reliable, skilled and competent worker with an excellent record with the Company in his many years of employment there.
[5] The applicant married in a civil ceremony in 1988. On the 14th of May, 1990, his son was born of the marriage. At the time of baptism of their son, the applicant and his spouse went through a religious form of marriage. The applicant and his wife separated in 1991, with the applicant"s wife taking custody of their son. A divorce became final between the applicant and his wife in 1994. During the period of separation, the applicant paid monthly support payments to his wife. Since her remarriage, the applicant has continued to make support payments for his son with whom he maintains a close relationship.
[6] In 1993, the applicant sexually assaulted his wife on two occasions. On the first occasion, he administered a drug and videotaped the assault. On the second occasion, he used a firearm to threaten his wife.
[7] On the 8th of February, 1995, the applicant pled guilty to and was convicted of sexual assault with a weapon, the administration of a drug for the purpose of having sexual intercourse, sexual assault and use of a firearm to commit an indictable offence. He was sentenced to imprisonment for two years less one day. He received parole after serving something less than nine (9) months in custody. His parole was subject to two conditions: first, to not associate directly or indirectly with his then former wife unless in the presence of a third party adult to discuss his son; and second, to attend for counselling with Dr. Ben- Aron, a forensic psychiatrist, or a designate, and to provide proof of such attendance to his parole officer.
[8] By reason of his convictions, a removal order was issued against the applicant. While the applicant did not challenge the legality of the removal order, he did appeal against its execution, pursuant to paragraph 70(1)(b) of the Immigration Act2. The relevant portions of subsection 70(1) of the Act read as follows:
| 70. (1) Subject to subsections (4) and (5), where a removal order or conditional removal order is made against a permanent resident or against a person lawfully in possession of a valid returning resident permit issued to that person pursuant to the regulations, that person may appeal to the Appeal Division on either or both of the following grounds, namely, ... (b) on the ground that, having regard to all the circumstances of the case, the person should not be removed from Canada. |
70. (1) Sous réserve des paragraphes (4) et (5), les résidents permanents et les titulaires de permis de retour en cours de validité et conformes aux règlements peuvent faire appel devant la section d'appel d'une mesure de renvoi ou de renvoi conditionnel en invoquant les moyens suivants_: ... b) le fait que, eu égard aux circonstances particulières de l'espèce, ils ne devraient pas être renvoyés du Canada. |
Neither subsection 70(4) or (5) is relevant for the purposes of this matter.
[9] In a relatively lengthy decision, the IAD reviewed the evidence of remorse and rehabilitation that was before it. In particular, it focussed on the testimony of the applicant himself, on three reports from Dr. Ben-Aron, the narrative report pursuant to subsection 27(1) of the Immigration Act that led to the removal order, the decision of the Ontario Board of Parole resulting in the release of the applicant from imprisonment, the decision of Mr. Justice Cullen referred to earlier, correspondence from the applicant"s probation officer indicating that the applicant is compliant with the terms of the probation order against him, an affidavit from the applicant"s former spouse and a supportive letter from the applicant"s employer.
[10] In the analysis portion of its reasons for decision, the IAD wrote:
The crimes of which the appellant has been convicted are very serious. There were two very violent sexual assaults over a period of several months. Both cases involved much premeditation and preparation on the part of the appellant. The appellant used drugs, and a gun combined with brute force to achieve the desired end of intercourse with his former spouse. On the first occasion, he further violated her privacy and dignity when he videotaped the assault.
The Appeals Officer described the crimes as being heinous and repugnant to Canadian society at large. The panel, after having reviewed the evidence, is in agreement with that characterization which must be considered as one of the many factors to be taken into account in deciding this case.
The appellant testified about his remorse for having committed the crimes. The panel finds that the degree of remorse shown by the appellant is not in keeping with the magnitude of his crimes. His statement that his former spouse is "OK" after having suffered two very violent sexual assaults, one of which was captured on videotape, the other involved the use of a gun and after having had only two counselling sessions, seems overly optimistic. It appears to the panel that the appellant by this route is minimising the impact of the crimes he committed.
There is no indication that the appellant has ever apologized to his former spouse for his behaviour. Her affidavit does not mention any remorse shown to her by the appellant. I note that she states that what the appellant did to her was "awful and very upsetting, it was nearly three years ago and I am over it. In fact, I have forgiven him."
Indeed, while incarcerated, the appellant was judged by corrections officials as not benefiting from the counselling program, and he was removed. Although the reports from the psychiatrist indicate some level of remorse, it was not demonstrated at the hearing by the appellant to the extent which is appropriate given the severe nature of the crimes.
With regard to rehabilitation, the appellant"s psychiatrist claims that the appellant is unlikely to reoffend unless nearly the same circumstances repeat themselves; that is, "another spousal relationship where similar marital discord resulted in the unfolding of similar emotions". In the 1998 report, the psychiatrist acknowledges that the relationship with the appellant"s common-law spouse is not going well, but concludes that he has no doubt that the appellant "will satisfactorily resolve his domestic difficulties with his common-law wife with no misadventure". The psychiatrist does not share his reasons for reaching this conclusion, other than that the appellant has not for four years "presented with any major mental illness or proclivity for aggressiveness or assaultiveness [sic] towards others or himself". The same report includes the observation that the appellant sees his son "very infrequently - a source of considerable disappointment but which is something dictated by his current spousal situation".
The doctor also characterized the appellant as not falling within the definition of a sexual deviant, even though he took videotapes of himself forcing sexual intercourse on his drugged and semi-conscious victim. While the appellant may not be within the definition of a sexual deviant, his offences are very serious.
The panel is not satisfied that the appellant has progressed sufficiently on the path of rehabilitation. The appellant"s lack of co-operation at the counselling program in the jail, his failure to apologize to the victim for his crimes, his limited insight into the reasons for his own actions, and his inability to maintain a spousal relationship, suggest that the opportunity for the same circumstances to arise exist and that this results in an unacceptable or unsatisfactory level of risk of recidivism.
The appellant"s psychiatrist seems content to leave any decision about future counselling to the appellant"s discretion, in spite of the difficulties which are known to exist in the appellant"s current relationship.
The appellant is well-established in Canada. He has lived here for over twenty years since age 12. He has his mother, siblings, son, and common-law spouse who reside in this country. He pays support for his son with whom he has a don relationship, and provides some financial assistance to his common-law spouse. He has a long period of employment. He has no relatives in his country of citizenship, and is not sure what employment opportunities await him there.
The panel, after having reviewed all the circumstances of the case, reaches the conclusion that the appellant should be removed from Canada. The crimes are heinous, the remorse shown is little in comparison to the complexity and violence of the crimes, and an unacceptable risk of recidivism remains. These negative factors are found by the panel to be so extreme that they are not offset by the appellant"s establishment in Canada, or by the difficulties which he might face in returning to his country of citizenship or by the hardship his family (including his child) will endure due to his removal.
[11] Counsel for the applicant urges that, in deciding that the applicant should be removed from Canada, the IAD went beyond a permissible weighing of the evidence in that it made its central finding, regarding the interrelated issues of remorse, rehabilitation and risk of recidivism perversely, generally without regard to the evidence before it, and by ignoring evidence and by groundlessly substituting its own conclusions for those of a medical expert.
[12] In the oft-cited decision Boulis v. the Minister of Manpower and Immigration3, Mr. Justice Abbott, for the majority, wrote at page 877:
In my opinion however, such an appeal [an appeal such as this providing broad discretionary power to the IAD to allow a person to remain Canada] can succeed only if it be shown that the Board (a) has refused to exercise its jurisdiction or (b) failed to exercise the discretion given under s. 15 in accordance with well established legal principles. As to those principles, Lord Macmillan speaking for the Judicial Committee said in D.R. Fraser and Co. Ltd. v. Minister of National Revenue, at p. 36:
The criteria by which the exercise of a statutory discretion must be judged have been defined in many authoritative cases, and it is well settled that if the discretion has been exercised bona fide, uninfluenced by irrelevant considerations and not arbitrarily or illegally, no court is entitled to interfere even if the court, had the discretion been theirs, might have exercised it otherwise.
[13] Mr. Justice Mackay of this Court paraphrased the foregoing text in Mohammed v. Canada (Minister of Citizenship and Immigration)4 where he wrote at page 332:
The broad discretion granted to the Appeal Division with respect to its equitable jurisdiction is provided in paragraph 70(1)(b) of the Act which empowers the Appeal Division to determine, "having regard to all the circumstances of the case" whether or not a permanent resident should be removed from Canada. Where this discretion has been exercised in a bona fide manner, not influenced by irrelevant considerations and is not arbitrarily or illegally exercised, the Court is not entitled to interfere, even if the Court might have exercised that discretion differently had it been in the position of the Appeal Division.
[14] Counsel for the applicant did not, as I interpret her argument, urge that the IAD exercised its discretion in other than a bona fide manner, nor that the IAD was influenced by irrelevant considerations. Rather, she urged that the discretion was arbitrarily or illegally exercised through ignoring of evidence, improperly assessing the weight to be given to evidence or by perversely interpreting and applying the evidence before it.
[15] In Pehtereva v. Canada (Minister of Citizenship & Immigration)5, Mr. Justice MacKay wrote at page 204:
Assessing the weight to be given to evidence, including that of an expert, is a matter for determination by the tribunal that hears it. Only in a most extraordinary case would a court on judicial review intervene because of the weight assigned by the tribunal to evidence. Only where it is clear on review that the tribunal acted unreasonably, and in relation to evidence upon which its findings were found to be perverse, would a reviewing court intervene. These circumstances are not here established. Rather, it seems clear the tribunal assess the evidence of the witness in question and determined that it would be given little weight, for reasons it made clear. The evidence of a person introduced as an expert is not entitled automatically to acceptance. Whether or not it is given credence, and the weight to be assigned to it, will depend upon its relevance and general consistency with other evidence, presented to the tribunal.
[16] I am satisfied that the foregoing is apt in the circumstances of this matter. There is no doubt that the IAD chose to single out and rely on limited aspects of the evidence before it, and to reject the burden of the greater part of the evidence before it which was in favour of the applicant. The IAD chose to focus on Dr. Ben-Aron"s acknowledgement that the applicant"s relationship with his current common-law spouse was on shaky ground and might not endure, a circumstance that preceded the applicant"s earlier assaults; on its own conclusion following and based upon the testimony of the applicant before it that the applicant had little appreciation of the gravity of his offences and their real and potential impact on a victim; on his limited remorse for his actions; and on Dr. Ben-Aron"s stated willingness to simply rely on the applicant himself to decide if and when he was in need of further counselling, and then to seek out help.
[17] As a result of choosing to focus on these factors of the evidence before it, little weight was given to much of the evidence of Dr. Ben-Aron. I am satisfied that it was open to the IAD to focus, as it did, and in the result to give little or no weight to much of the evidence before it, including expert opinion. In the words of Justice MacKay in Pehtereva quoted earlier:
Assessing the weight to be given to evidence, including that of an expert, is a matter for determination by the tribunal that hears it.
Whether or not I or others would have reached the same result, and focussed in the same way, the IAD"s analysis in reaching the conclusion it did was thorough. It did not ignore evidence. I am not satisfied that its findings or conclusions could be said to be perverse having regard to the totality of the evidence before it. I am further not satisfied that the IAD acted unreasonably.
[18] For the foregoing reasons, this application for judicial review will be dismissed.
[19] At the close of the hearing of this matter, I undertook to distribute draft reasons to counsel and to provide an opportunity for written submissions on certification of a question. Draft reasons in the form of these reasons to this point were distributed. Counsel for the plaintiff recommended certification of two questions as follows:
1. Always assuming the prerogative of the tribunal to weigh the findings of evidence it makes in deciding the issues required for its decision, is it not the case that such findings must first be made in conformity with the terms of s. 18.1(4) of the Federal Court Act, that is, they must not be made without regard to the evidence before the tribunal?
2. Where expert evidence is presented at a hearing, can the panel substitute its opinion for the expert"s evidence on the matters specifically dealt with by the expert? Where the expert is a qualified practitioner in a generally accepted field of expertise, must not his or her evidence be accepted by the tribunal unless it is contradicted by another such expert or unless the underlying premises (the facts) on which the opinion [is based] are challenged?
Counsel for the respondent provided no written submissions within the time provided.
[20] No question will be certified. The first question proposed would not be determinative. I have found that the decision of the CRDD was not made without regard to the evidence before it. I am satisfied that the second question proposed deals with well settled law, albeit perhaps not at the level of the Federal Court of Appeal.
_________________________
Judge
Ottawa, Ontario
June 11, 1999
__________________
1 [1997] F.C.J. No. 205 (F.C.T.D.), (Q.L.).
2 R.S.C. 1985, c. I-2, as amended.